More than 14 months after the Supreme Court first held that the Criminal Code provisions forbidding physician-assisted death were unconstitutional in Carter v. Canada (Attorney General), 2015 SCC 5, and almost three months to the day from the date that the Supreme Court gave a four month extension to its suspension of the declaration of unconstitutionality (see Carter v. Canada (Attorney General), 2016 SCC 4), the Liberal government has introduced its legislative response with a bill, Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying).

The proposed legislation does not go as far as the Report of the Special Joint Committee recommended. It only applies to competent adults who have a grievous and irremediable medical condition and for whom death is reasonably foreseeable will be able to avail themselves of medical assistance in dying. Mature minors (I prefer the term “competent minors”), persons with grievous psychiatric diseases or conditions, and persons who have the onset of dementia cannot avail themselves of this service. Adults suffering grievously and intolerably but for whom death is not reasonably foreseeable are similarly blocked from medical assistance in dying.

In my view, the government has been too cautious – cautious in the political sense, not the legal sense. There can be no doubt, in my view, that a person who is suffering grievously and intolerably, whether he or she be 16 years old or 66 years old, whether the suffering is caused by a physical ailment or by a mental disease, is nonetheless suffering grievously and intolerably – as much, and perhaps more so, than an adult person suffering the same condition but nearing the end of life. (I say “perhaps more so” because, at least if you are near the end of life,  you can realize that the suffering will be finite. But when you are not nearing the end of life, the suffering may seem endless and therefore all the more grievous and intolerable.) There can also be no doubt that the Charter rights of these excluded persons are no less engaged than those of adult persons nearing the end of life and suffering from the same grievous and intolerable conditions. I note that the Special Joint Committee had not placed these sorts of limits on the availability of medical assistance in dying – with the exception of mature minors which the Committee suggested be the subject of further study and consideration.

The only option for those who are excluded will be to bring a constitutional challenge to the Criminal Code provisions – in essence, to assert the same arguments that the plaintiffs did in Carter, all at great expense, with long drawn-out legal proceedings, and all while suffering grievously and intolerably.

I will be blunt. Death is not just “reasonably foreseeable” for everyone. It is just about the only certainty in life (as the expression goes, that and taxes…). Provided we place procedural protections in place to protect the vulnerable from improper influence and we ensure that the competent person making the choice to avail herself or himself of medical assistance in dying is fully consenting, anyone who is suffering grievously and intolerably should be able to bring her or his life to an earlier end with the dignity that such assistance can provide.

If this legislative measure passes as is, I regret to say that we will see yet another challenge (and more people suffering unnecessarily) in the not too distant future.

I remain

Constitutionally yours

Arthur Grant